09 May 2022

The 9th amendment and un-enumerated rights

Apparently this crap draft opinion by Alito just plain blasts the decision in Roe v. Wade mostly on the basis that "the right to abortion," along with such things as fundamental privacy rights, the right to travel, the right to private sexual conduct between consenting adults, the right to marry whom you wish, etc., are not explicitly mentioned in the Constitution. I note that one thing that is mentioned in the Constitution is the 9th Amendment, which completely obliterates this asinine argument: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I have seen it argued many times by conservatives that there are no fundamental rights, that the state may compel or prohibit anything ab initio, and only those specific privileges (because if they aren't inherent that's all they are) which are explicitly carved out can be said to exist. Because this point of view is so inherently authoritarian and unattractive, they usually couch it in various euphemisms, but the brutality of it remains. But this argument is a nonstarter: the 9th amendment, by any reasonable reading, explicitly denies this legal view's legitimacy. The drafters of the first ten amendments had certain concerns and explicitly laid out certain limitations on the right of government to infringe on citizens' rights. But they also had the wisdom to say, in the language of the time: Just because a right isn't explicitly set forth in the Constitution doesn't mean it isn't a right. And no amount of bullshit from the likes of Alito can change that. 

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